Mitter and Agnew, JJ.
1. Two points have been argued in this case: the first of these is, that the District Judge is in error in supposing that there is absolutely no rebutting evidence against that adduced by the defendant to show that there was a diminution in the quantity of land contained in his tenure.
2. The District Judge, it appears to us in the passage referred to above, referred to such evidence as measurement papers, zamindari papers, and other papers of a similar nature. It is not alleged before us that there is any such evidence on the record. There is nothing in the judgment from which we can say that the District Judge has not taken into consideration the circumstance that the defendant's predecessor-in-title did not claim any abatement upon the ground of diluvion. It is quite possible that the District Judge thought that the predecessor-in-title of the defendant was not aware of his rights. We are, therefore, of opinion that there is no force in this objection.
3. The second point that has been argued before us is, that the defendant, as an auction-purchaser, has no right to claim any abatement which may have accrued to the predecessor-in-title of the defendant, whose rights he purchased in execution of a decree.
4. In support of this contention the decision in Prosunno Moyee Dossee v. Doya Moyee Dossee 22 W.R. 275 has been cited. That case is clearly distinguishable from this. There the right to the abatement depended upon a contract between the landlord and the original tenant, which provided that there should be an abatement of rent if on measurement at a time fixed by that agreement the quantity of land was found to be less than that stated in the agreement. The original tenant did not claim any abatement for about six years after the accrual of the right, but continued to pay the usual rent, and he then sold to the defendant.
5. It was held in that case that it was doubtful whether the right to enforce the terms of that contract passed by the sale of the tenure. But in this case the right to abatement did not depend upon any contract, but upon the general law by which a tenant can claim abatement on account of the diminution of area by diluvion, and that such right we think passes with the sale of the tenure.
6. We are, therefore, of opinion that this ground is also not valid. The appeal is dismissed with costs.